Insights Header image
Insights Header image
Insights Header image

Ontario Arbitrators Continue to Uphold Terminations of Employees who Breach COVID-19 Safety Protocols

January 12, 2022 Employment & Labour Bulletin 2 minute read

As previously reported, Ontario labour arbitrators have found that attending work in breach of employer COVID-19 (“COVID”) protocols and/or lying during employer COVID screening is serious misconduct that can lead to termination for cause. A recent decision by an Ontario arbitrator further affirmed the notion that dishonesty during COVID screening protocols by an employee can lead to termination for cause.

In Johnson Controls Canada[1], the employee was a technician, performing maintenance work throughout a hospital. At the start of each shift, the employee attested that he was experiencing no COVID symptoms as per the hospital’s standard COVID attestation form. However, the employee did, in fact, have several COVID symptoms, which he did not report, as he believed them to be caused by allergies. After four shifts during which the employee exhibited COVID symptoms and was prompted by his colleagues to take the COVID attestation more seriously and report his symptoms, the employee tested positive for COVID.

The employer terminated the employee for cause, on the basis that the employee had committed serious violations of the hospital’s COVID infection control policies and had placed his co-workers, hospital staff, patients, and the public at serious risk.

The union grieved that the employee was discharged without just cause, because the employee honestly believed that his symptoms were related to his allergies, and that when he realized he might be sick with something else he called in sick, reported his symptoms and underwent testing.

The arbitrator found that in failing to report his symptoms and falsely attesting on multiple occasions that he was not experiencing such symptoms, the employee committed multiple, and very serious, breaches of an essential workplace policy intended to protect the health and safety of workers, patients, and the public, in a hospital environment where the importance of such protections is paramount. The employee may have genuinely believed his symptoms were due to allergies, but his false attestations deprived the employer and the hospital of the opportunity to assess his symptoms.  The arbitrator found the employee’s conduct formed just cause for discipline, and upheld the termination.

This decision further reinforces that disciplinary action, including termination for cause, is appropriate in instances where employees are dishonest and fail to comply with health & safety protocols. This decision, along with similar Ontario arbitration awards, should give employers confidence when implementing disciplinary action against employees who violate important COVID protocols.

If you have any questions relating to the above, please do not hesitate to contact a member of the Employment & Labour Relations Group.

[1] Johnson Control Canada LP and Teamsters Local Union 419, 2022 CanLII 40 (ON LA).

by Patrick Groom, Victor Kim, Sezen Izer (Articling Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2022

 

Insights (5 Posts)View More

Featured Insight

Energy Insight – Making Dollars and Sense of Carbon Markets – Part 2: Carbon Pricing

We examine the economic and policy challenges associated with carbon pricing systems.

Read More
Jul 10, 2024
Featured Insight

Purchaser in the Driver’s Seat: Ontario Court of Appeal Enforces Commercial Non-Compete

A recent Ontario Court of Appeal decision affirms that non-competes within a sale of business context are presumed enforceable.

Read More
Jul 9, 2024
Featured Insight

Bill C-59’s Expansion of the Competition Act’s Deceptive Marketing Practices: “Greenwashing” and Steering Clear of Environmental Misrepresentation

Guidance on the amendments to the deceptive marketing practices provisions in the Competition Act designed to "crack down" on "greenwashing".

Read More
Jul 8, 2024
Featured Insight

A Word of Caution: Acceptance of an Email Offer of Employment May Create a Valid Employment Contract

Employers should ensure all terms of the employment contract are included in the initial offer to prevent an accidental contract with missing terms.

Read More
Jul 8, 2024
Featured Insight

Clearing the Cache: BC Court Orders for Return of Data in Privacy Breach Dispute

A recent BCSC decision provides an example of a remedy that a public body may seek if personal information in their custody is obtained without authorization.

Read More
Jul 8, 2024